The recent lawsuit by rapper Dr. Dre against Napster
and his battle against the teenagers who traded music over the internet
may seem like a simple case of intellectual property law, but it's implications
are far more sinister.

What is music anyway? Pressure fluctuations
strike our eardrums and somehow generate sensations in our brain that we
somehow find pleasurable. Signals propagate through the air along with the
rattle of jackhammers and the roar of diesels, yet we pluck them from the
noise that surrounds us and perceive them as something that enriches our
lives. It's magic, in a way. But for all the value we give to these pulses
in the air, they are only the ethereal echoes of some mechanical vibration.
How then can a person "own" a vibration? How can we buy and sell
harmonics? Who gives one person the right to allow or to deny others to
hear the music?

The law does, that's who.

Indeed the copyright laws of the nations of the world have enabled the
growth of enormous industries which make their money by peddling this fleeting
and nebulous physical phenomena. These businesses have become so entrenched
into the fabric of our society that we seldom question their right to meter
these sounds to the masses and to demand payment for our privilege to listen.
We passively accept the odd notion that the noise from banging drums or
from strumming strings is a commodity as saleable as pork bellies.

We should remember, however, that the laws that give this quaint practice
legitimacy are merely the arbitrary constructions of society rather than
a God given mandate from heaven. Until western culture invented the concept
that music could be owned such a thought was ludicrous, a bizarre corruption
of nature's way. Along the way we chose to make music into property, but
this was not a singular decision, debated and decided upon by people of
judicious nature, rather the notion grew piecemeal from the arcane history
of print copyright laws which themselves arose from the random workings
of human endeavor. Our world could have easily evolved with music as a freely
given, freely taken work of nature, as free from the rules of commerce as
is our very breath.

Instead we now read headlines describing billion dollar lawsuits against
internet companies which had the temerity to allow the downloading of copyrighted,
digitized music. Such "theft" of intellectual property is viewed
as larceny of the highest order and the penalties are so severe as to condemn
the offender to financial death. However, such views only reflect our present
day sensibilities, skewed by the adversarialism that we accept as normal
commerce and by the complicated laws that govern it. But is this right?
Can we judge the correctness of these laws without understanding their original
purpose and the torturous path by which we've come?

The origins of copyright

Copyrights arose from gentlemen's agreements between the members of the
bookselling guild of sixteenth century England. The members agreed among
themselves that the right to print specific works could be exclusively given
to a particular printer, affording protection from competition by the others.
There was no force of law behind these agreements, only the agreed upon
rules of the printer's cartel enforced the monopoly. There were, however,
many printers that did not belong to the cartel and they printed whatever
manuscripts they chose, competing fiercely with a guild that had no legal
right to stop them.

By the end of the sixteenth century the increasing influence of the printing
press began to worry the monarchy as a potential source of sedition and
agitation against the crown. The King saw a way to use the printer's cause
for his own purposes and granted the printers guild, now called the Stationer's
Company, a royal charter that gave them a sanctioned monopoly on all printed
works as well as the power to enforce their monopoly throughout the empire.
This enforcement authority was under the direction of the crown and was
afterward used for its primary purpose, to control the content of any publication.
This "copyright" was in reality the first censorship of the press
and it was used as such by the English government well into the eighteenth
century.

The writer's of the American constitution had themselves been victims
of the censorship aspect of copyright and had borne the brunt of Britain's
colonial monopolies. They were therefore determined that such monopolistic
power would not be used to control the press in the United States. On the
other hand, they were also businessmen and suspected that without some protection
for ideas and artistic works, the creative forces of the people could not
be fully realized. The result was a compromise; Article I, section 8, clause
8 of the United States Constitution which gives Congress the obligation
to "promote the Progress of Science and useful Arts, by securing for
limited times to Authors and Inventors the exclusive Right to their respective
Writings and Discoveries."

It is important to note that the very clear purpose of the framers was
to promote knowledge and art -- not to guarantee monopolies by it's creators.
The use of the word "limited" speaks forcefully on this point.
This clause is the constitutional foundation for the first Copyright Act,
which granted the holder of a copyright the exclusive right to print, publish,
and sell a copyrighted work for fourteen years with a second fourteen-year
term possible. There were no rights given to the copyright holder regarding
the public performance of the work nor could the holder control adaptations
or derivative works.

The Copyright Act also defined the doctrine of fair use, wherein certain
uses of the copyrighted material do not constitute an infringement. The
principle of fair use involves four factors, all of which must be considered
in any infringement case: That the work not be used for profit, that the
particular characteristics of the work must be considered, that the amount
of the copyrighted work used is small as compared to the complete work and
that the effect of the use does not adversely affect the value of the original
work.

The original copyright laws of the United States were designed to strike
a balance between incentivizing those who created versus the benefit that
the unfettered access to these works would bring to the citizenry. The Supreme
Court ultimately declared that "The immediate effect of our copyright
law is to secure a fair return for an 'author's' creative labor. But the
ultimate aim is, by this incentive, to stimulate artistic creativity for
the general public good."

Who's rights are we protecting?

The recent lawsuit by rapper Dr. Dre against MP3 company Napster and
the ongoing battle between the teenagers who traded music over the internet
may seem like a simple case of intellectual property law, but it's implications
are far more sinister. Dr. Dre's lawsuit demands that the Napster website
be shut down because it includes information on how to break the encryption
on DVD disks. If upheld, this essentially makes illegal an entire technology,
one that has enormous benefits to the public, simply because it could be
used to download software without payment to the holder of the copyright.

By this thinking, the entire internet should be illegal, for it is nothing
but a giant mechanism for the free flow of information of all kinds, whether
copyrighted or not. On the surface, the rights of free speech would seem
far more important than some copyright issue, especially when, as we've
seen, the purpose of copyright law is to advance the common good, not to
guarantee the wealth of a monopolist. It seems downright laughable that
the desire for money, by some rapper who is already absurdly rich, should
make illegal an entire technology that offers a benefit to the public. Yet,
just a few months ago, in a similar case, the recording industry obtained
an injunction against parties that published software that could break DVD
encryption.

Automobiles were not outlawed in the early days of this century just
because they posed a threat to the buggywhip interests. Why is it so different
now? Why must today's society forego beneficial new technologies for the
sake of the recording industry? Why is the music business so sacred that
the rest of the world must remain mired in the technology of the past so
that recording stars and record companys can rake in their billions of dollars?

We've lost our way

Even the most casual reading of history makes it clear that the founders
of the United States never intended that copyright law become a tool for
excessive monopolistic control over knowledge or works of art. The entire
legal basis of copyright law was founded on the balance between the rewards
for creativity versus the public good. But in the last two centuries we've
lost the original meaning of the constitution and now seem to view copyrights
solely as a tool for the acquisition of wealth by the holder of the copyright.
Public good be damned.

Current copyright laws have extended the period of exclusivity to the
life of the holder plus seventy years, hardly a "limited time"
as described by the constitution. The fair use doctrine has been so gutted
by complicated licensing loopholes and by definitions of "derivative"
so absurdly broad that almost any use of any work opens the user to frighteningly
severe criminal penalties -- even for uses that bring no monetary gain,
strictly against the original meaning of fair use.

All of this places the individual at a terrible financial disadvantage
in today's legal world, where wealth so often determines the outcome in
court. The legal profession gravitates to the side with the deepest pockets
and that is of course where the recording industry sits. The financial might
of the recording industry has brokered a legal environment where it always
wins, if not in court then in other, duplicitious ways. The market for Digital
Audio Tape was crushed because of the mere possibility that recordings might
be copied. Behind the scenes maneuvering by the electronics industry and
the recording business buried a technology, in the name of copyright protection,
that would have been of immense value to the public. This is the very censorship
that those who wrote the constitution sought to avoid.

Monopoly money

If the current scheme for protecting intellectual property actually did
protect creativity, then we should be surrounded by artists and technical
innovators who have profited from the process. But the single most glaring
characteristic of industries that live and breathe by copyright laws is
the enormous disparity of income between the few at the top and the many
at the bottom. For every rich performer in the entertainment business there
are millions more that live in poverty or give up hope of ever making a
living through their art.

All of this money flowing to the recording industry should theoretically
foster immense variation and choice to the public, yet we are immersed in
a top-forty market demographic designed by the industry for maximum financial
gain. Copyright law now protects a status quo rather than promoting the
arts; the whole purpose of the copyright has been subverted.

We have made ourselves victims of other's greed by foolishly accepting
the premise that the broader the monopoly granted to copyright holders,
then the greater the incentive for innovation. But Shakespeare needed no
such incentive. The fact is that every work of scientific or artistic value
ever created was built on works that came before. The intricate and overly
broad protection of intellectual property has begun to muzzle the creative
process that the copyright laws were meant to advance. We have taken away
the value of copyright as a reward for creativity and replaced it with a
system of sanctions so complex and so daunting that only large corporations
and the very rich can use it to advantage.

The record business has shown that it will eagerly stifle technological
advancement to preserve a monopoly far broader than the writers of the constitution
ever intended. People such as Dr. Dre have no conception that the real purpose
of copyright law is to advance the common good. Instead they shamelessly
exploit our poorly considered laws solely for their own enrichment and to
the detriment of the public welfare.

Dr. Dre has made it big in the recording industry and is now part of
the establishment. He says he doesn't like anyone stealing "his"
music, but the very law he cites arose from the principle that the music
really belongs to the world and his limited rights are constrained by the
common good. Artists have a right to benefit from their creativity and their
sacrifice, but there is a limit, defined by the constitution, beyond which
the enforcement of copyrights interferes with the rights of everyone else.
It's time we take back what is ours. We must demand that the laws that govern
copyrights adhere to the intent of the constitution. We must insist that
moneyed interests don't control our technology and our future for their
own selfish interests.